This Talk Nation Radio transcript covers the White House and NSA program of secret spying on Americans. The President and Attorney General have said the program is legal. Members of Congress from both sides of the political aisle say they disagree. We speak with Attorney Carol Rose, Executive Director of the ACLU of Massachusetts and Declan McCullagh Chief political correspondent for CNET Network’s News.com.

The ACLU provides 7 Things you can do today to restore the rule of law in America.

The Administration argues that the NSA spy program is very limited where surveillance of Americans is concerned but rights activists, Senators, and journalists, are skeptical. Carol Rose joins us to talk about a case involving a librarian, who stood up to the FBI and demanded a warrant before turning over her library’s computer, and the ACLU’s lawsuit over the NSA spy program. (Carol Rose is a distinguished lawyer and journalist. Her bio linked to her name above is in pdf file format.)

Dori Smith: Carol Rose, welcome to Talk Nation Radio.
Carol Rose: Thank you. It’s nice to be here Dori.

Dori Smith: What are your impressions right now after the hearings and after so much more has come out about the NSA spy program? Do you think that the President is going to be called to task or are you getting the impression that things are sort of moving in a direction that is unwelcome?

Carol Rose: I think that despite the PR campaign that the President and Mr. Rove are putting forward to try to justify their illegal wiretapping of ordinary Americans, I think that there is really a tipping point where conservatives, “small c” conservatives, and liberals alike, are really joining together to say: The issue here isn’t simply one of privacy rights. The larger issue is really an attack on our system of checks and balances, the very structure of our government. Because the Administration effectively is saying, Dori, that they would like to have unfettered Executive Branch authority and that no one, not Congress and not the courts, are able to make them comply with the laws that every other person in America has to comply with.

Dori Smith: Members of Congress from both sides of the political aisle seemed a little bit put out with our Attorney General Antonio Gonzales as he evaded some of the questions. Do you have a take on the hearings yet?

Carol Rose: I think not only were his answers quite evasive, but they were even disturbing. I mean we saw a number of people, a number of Republicans, basically trying to give Mr. Gonzales a way out by saying, gee, maybe if you would just ask us to authorize this and approve it we would do that. But what the Administration is saying is, no, we don’t even need to make it legal. We can do it whether or not it’s legal. So it was quite an extraordinary seizure of power in effect by the Executive Branch to say even if this Congress would roll over and give us everything we wanted we don’t even want to ask for permission. We want to be able to spy on ordinary Americans and not even get Congressional oversight or any kind of permission to do so. It kind of harkens back to when Richard Nixon said, “If the President does it it’s not illegal.”

That didn’t work for Richard Nixon and I don’t think it’s ultimately going to work for George Bush either.

Dori Smith: Tell us the nature of the ACLU’s lawsuit here. Who is it filed against and what does it say?

Carol Rose: The national ACLU, the American Civil Liberties Union office, the legal department, has filed a suit against the NSA on behalf of a whole range of organizations and individuals saying that it violates the 1st Amendment, the 4th Amendment, the right to be free from search and seizure, and also the very system of checks and balances, for the President to authorize illegal eavesdropping on ordinary Americans and other people for that matter without getting a warrant. It says that violates our very system of checks and balances and its thus unconstitutional.

Dori Smith: Now as I read through the kinds of things that you have said in articles and publications, I noticed one that stood out, and it has to do with the “answer” that you have put forward here, which is not to “shelve the Bill of Rights,” but “to create an expedited process for obtaining warrants.” (Quote: “In a situation like this, the answer is not to simply shelve the Constitution and the Bill of Rights, but to create an expedited process for obtaining search warrants. We can address security concerns without surrendering basic constitutional rights.”)

Carol Rose: That’s absolutely right Dori. I mean no one, not the ACLU and probably no one that I know of, would say that somehow the government shouldn’t be eavesdropping or wiretapping members of Al Qaida or people who would do our country ill. That’s not the point. The point is they already have the power to do that. They didn’t need to do that outside the balance of the law.

They can do that legally is in two ways. If it’s a criminal investigation they can do it under Title 2 of the criminal code. They can actually get a warrant and eavesdrop on people who they think are committed a crime and are going to imminently commit a crime; If it’s foreign intelligence surveillance, to get foreign intelligence information about Al Qaida, or other terrorist networks, they can do it under something called the Federal Intelligence Surveillance Act court, FISA. This is a secret court that operates twenty four seven, there are eleven federal judges that have been on this court and they give warrants for the government to engage in eavesdropping when the target is a foreign agent and they think that there is potential terrorist activity going on.

The court turns this stuff around within hours. Turns the warrants around, and of the 20 thousand warrants that have been requested of the FISA court only four in its history have ever been turned down, so the legal mechanisms were in place, and should be in place, for the government to do what it needs to do to keep us safe.

The concern here is that the government has said we don’t even want to comply with those laws, we want to be able to do whatever we want, outside of the law, and in effect, it has very little to do with the war on terrorism but has a lot to do with whether or not we are going to permit our system of checks and balances to be undermined.

Dori Smith: What the White House and Justice Department are arguing, and also a member of the NSA Michael Hayden, argued, that this is a small confined program. It only involves the wiretapping of known terrorists in conversations with Americans. I mean a lot of people just frankly don’t believe them.

Carol Rose: It’s done in secret. So it’s hard to know how many or who specifically is being wiretapped. But a couple of things we do know. One is that we know that there are thousands of people who have been wiretapped. The second thing we know is that almost everyone who has ever come into this big net of wiretapping has subsequently been cleared. And that was reported just a couple of days ago in the Washington Post because somebody leaked it to the Washington Post.

So a lot of it is happening in secrecy, but the information we are getting is that we are not really getting a lot of terrorists through this kind of a dragnet system. The other thing that creates concern is that through the ACLU’s use of the Freedom of Information Act law which permits people to get files that the government keeps on them: We do know that the government, through the Defense Department and through the FBI has been spying on people for their protected political activities. A lot of the targets have included people who are involved in the environmental movement. People in prevention for cruelty to animals, the PETA group, Quakers, and anti-war groups have been targeted; people at the ACLU have been targeted. So we know that this kind of domestic spying is going on and there is really little reason to think that if the government is doing it through the Defense Department and through the FBI that somehow they wouldn’t be doing it through the NSA spying program. What we do know is that thousands of people have been targeted but we simply don’t know because how many exactly and who they are has been kept secret.

Dori Smith: If this is the case and this government is trying to basically X out the rights it doesn’t want us to have because it wants to operate with impunity, then what kinds of things would you suggest that we do?

Carol Rose: I think it’s important that people take action, and certainly on our web site: ACLU.org we have a number of steps that people can take to take action. I think that people need to be saying to their members of Congress, and in particular, to the Republicans in Congress who control the Congress right now that we really need to have an independent prosecutor, who is going to investigate any crimes that have taken place, including crimes that the President and his people may have committed. –That we need to have a bipartisan Congressional committee, sort of like the 9/11 commission with subpoena powers, so that we can have some legitimate oversight of what’s going on.

We do know that people within the Administration, including Mr. Hayden, who you mentioned earlier, have said that we need to have an open investigation and public debate before we make these decisions. We know that James Colby who was the acting Attorney General, the Deputy to John Ashcroft –When Mr. Ashcroft as Attorney General was in the hospital James D. Comey as acting director, refused to authorize this program saying that it did not have adequate Congressional oversight –So we know that a lot of people, you know traditional conservatives, have been concerned about this program and we believe that the conservatives in Congress equally should be concerned because there is the very question of whether the President can act without the oversight of Congress or the Judiciary. It’s an attack on our system of checks and balances and we need to look to Congress and We the People have to call on our Representatives from both sides of the aisle to begin to launch an investigation and to really find out what is going on and why is this President who has a lot of power right now to conduct the war on terrorism, asserting that he does not have to obey the law. (Here for biography of James D. Comey: New York Metro On October 20, 2003)

Dori Smith: I want to turn to the story of this librarian in Massachusetts who basically said to the FBI get a warrant before you ask me to turn anything over from our library. How did this happen and what kinds of things did this librarian do?

Carol Rose: My understanding of it, and I think the Mayor of Newton Massachusetts, David Cohen, as well as the librarian, really showed a profile in courage on this case. What happened is the FBI and the local police showed up at the Newton Free Public Library and said, “we want to take all 23 computers, there has been a bomb hoax against Brandeis University,” and it’s my understanding that they knew from the beginning that it was a hoax, and not a real threat. And so that they knew there wasn’t an imminent danger, or they believed; the librarian and the Mayor were told there was not an imminent danger, and what they said was well you know you really have to have a search warrant because when you think about the hundreds of thousands of people who might have used one of these 23 computers and still have a record of that, their rights to privacy are also protected by the 4th Amendment. And so they said you need to get a search warrant.

Apparently it took the FBI something like ten hours to go and get a search warrant. And the local press has been quite critical in saying, well you know the librarian should have just been cooperative and invited them into her home, like you could invite the FBI into your home without a search warrant.

That misses the point, which is first of all; the librarian isn’t authorized to decide when the law applies and when it doesn’t. The librarian, like all people, from the President down to every library and every citizen, is compelled to obey the law and when the law is on the books, especially in a time of crisis, you need to obey the law. And second, it wasn’t her home, it was the library, and it wasn’t her records that were on those computers it was hundreds of thousands of other people’s records that were on those computers, so the librarian really did the right thing and I think that the Mayor did the right thing as well in backing here up. And I think it is important that we recognize that if there is a problem, the problem is with why it took the FBI ten hours to get a search warrant when in fact we have these expedited procedures in place to insure that the warrants could be turned around if there was an actual threat within a matter of minutes or hours.

Dori Smith: Just finally, what has happened as a consequence of all of this? Is the librarian OK? Has she come out of this with problems or no?

Carol Rose: From what I understand there has been a lot of traffic, email and letters and phone calls on both sides. Some people are saying that somehow she and the Mayor did the wrong thing because by God you should let the FBI come in and get it to stop any crime that’s taking place. -But I think that’s based on a misconception, both of the facts, because apparently they did know that it was a hoax right away and there wasn’t an imminent threat, but I think it’s also based, even if it had been, I think it’s based on a misreading of what the role of a citizen is.

Every one of us is compelled to uphold the law and to obey the law and it is not her right to say when the law does and doesn’t apply. The problem here is not with the librarian. She did the right thing. The Mayor did the right thing. They really were courageous and patriotic in what they did. The problem it seems to me is that if the FBI and local law enforcement officials can’t figure out a way to get a warrant in less than ten hours when they have all of these tools available to them to do so then we need to find out what’s wrong with that system.

Dori Smith: Carol Rose thanks so much for joining us.
Carol Rose: Dori nice to speak with you thank you.

Dori Smith: Carol Rose is Executive Director of the ACLU of Massachusetts.

Journalist Declan McCullagh, is Chief Political Correspondent for CNET Network’s News.com He writes on technology and the law as well as issues of free speech and US Government surveillance. Declan McCullagh’s recent piece on the Patriot Act and Email Spying that has been approved see: Justice Department

Two of his February 2006 articles in News.com are titled: NSA Eavesdropping “how it might work?” (with Ann Broache, February 7, 2006) and also “Some companies help the NSA but which?” -

I asked Declan McCullagh if things were better or worse than he might have expected when he began these intensive work in these areas some ten years ago.

Declan McCullagh: It’s both better and worse than we thought. Back when I started Politech and I started writing about these topics as a reporter in 1994, we weren’t really sure how free the Internet was going to be. There were discussions about restricting the domestic use, not export, not sales, but even the use of encryption to protect your privacy. And there was also concern about what was basically an attempt by the then Clinton Administration to force everyone to use telephones with back doors for the Feds and this was the “Clipper Chip”. Both of those proposals failed. The “Clipper Chip” was eventually abandoned and also controls on the domestic use of encryption never went anywhere and so by those two measures we are actually in better shape. But the flip side is that we also have a lot of other concerns nowadays. Listeners probably know about the NSA surveillance and how that’s playing out politically.

Dori Smith: When we look at the NSA spy program in terms of government officials and members of the intelligence community we might imagine a small number of people being involved in this. In reality though, are there private companies, public relations firms, other countries perhaps involved?

Declan McCullagh: We have more questions then answers but let’s review what information has become public. The L.A. Times reported that ATT was involved, is basically in bed with the National Security Agency, the NSA, on this. And the Electronic Frontier Foundation is filing a lawsuit, basically a class action lawsuit against ATT accusing them of collaborating and violating their customer’s privacy in violation of the law. So there are some companies that have to, almost certainly have to be collaborating with the NSA for this to work.

Another way is that the NSA can send a submarine down and tap into the fiber optic cables and there is a submarine that’s been retrofitted for this, the USS Jimmy Carter, actually, is what it’s called. So it’s not clear who is collaborating and who is not. I’m working on an article for News.com that is going to shed some light on this.

Dori Smith: Why would they put it on a submarine?

Declan McCullagh: There are essentially two ways to intercept communications. I’m maybe making a gross generalization, but if you want to eavesdrop on communications that are traveling say between the US and Asia or the Middle East, and you don’t have the cooperation of companies in the Middle East, then you have two obvious alternatives. The first is to talk to the company that’s maintaining the connection link and plug into their switching stations here in the US which in the case of the under seas fiber optic cables that handle most of the traffic is often New York, Long Island, some place on the East Coast, which is where the final connection before the fiber connection happens.

The second way to do it is if you can’t get that cooperation, or you think that secret may leak because these are pretty incendiary things you are doing, is you send a submarine down and you intercept the cable offshore and then you can just tap into, if you are very careful and you know exactly what you are doing, you can just eavesdrop on communications that way.

Dori Smith: The President has said that this program of using the NSA to spy on Americans, listen to their phone calls and so on is only being used when there is a known link to a terrorist or terrorist group. Do you believe him?

Declan McCullagh: I don’t think that’s an entirely accurate summary of what’s going on. I think it’s more likely that a huge amount of communications are being intercepted and sifted through, maybe even every bit of communications the NSA can lay its hands on in terms of international traffic. Email and voice calls. Then the question is how much is actually retained and looked at by humans, and perhaps in that case it’s only a small amount but I think the evidence we have to date suggests that a huge amount is being intercepted and then only a small amount is being retained.

Dori Smith: And so we can turn to this story by Eric Lichtblau and James Risen. –They are saying that the National Security Agency has traced and analyzed a large volume of telephone and internet communications flowing into and out of the US by tapping directly into some of the American telecommunications systems main arteries. Just talk about that description.

Declan McCullagh: Well if you want to tap into communications, domestically in the US, it’s going to be a very difficult thing to do because there are so many ways that communications can be exchanged. You can have two companies that want to chat with each other, let’s say AOL, and Yahoo, or Microsoft or something like that, and they can run a fiber optic line directly between their servers. Not everything is going to go through what use to be called May East and May West which are switching stations. I once visited May East out in the suburbs of Virginia back about ten years ago when a lot of communications on the East Coast were being run through it, but nowadays you have a lot more private arrangements. So just doing a wholesale tapping in the US of everything is pretty much infeasible and also you would have too many people knowing about it.
But if you want to tap overseas links, this goes back to going after under seas fiber optic cable or some sort of tap on the switching station, basically a building near where the fiber optic cable dives under the ocean.

Dori Smith: Once having gotten a warrant would it have taken a long time to wiretap somebody in this way?

Declan McCullagh: The Bush Administration has said through the Department of Justice that doing some sort of warrant seeking through the FISA Court, the Court established in the post-Watergate reforms, would just take too long because it has to be signed off by the Attorney General and then it has to go to the Court. I don’t, uh maybe I’m missing something. I’ve read I think everything that’s been published on this and I’ve read the law and all it says is that it has to be approved by the Attorney General, and it has to go through the FISA court, and both of those can be done via email or via telephone conversations. It doesn’t say this has to be done in forms and triplicate. I mean, I can imagine a five minute call between the Attorney General and the Chief Judge of the FISA Court, in which something like this can be approved very quickly.

Dori Smith: So when someone like Tom Blanton at the National Security Archives, suggests that they have the capacity to actually listen to every overseas telephone call from the US talk about how they would then extract the information that would provide proof that people were talking with terrorists, I mean, known terrorists.

Declan McCullagh: Right. Again let’s draw a distinction between domestic conversations, which are plentiful, and the kinds of conversations that cross the US border. It’s much easier to tap the second type. But in terms of how it would be done there is a tremendous volume of information pouring through even these fiber optic cables, but the NSA also has a tremendous budget and tremendous resources to figure out how to do this.

In principle it’s not that difficult. You have very good voice recognition software. Speaker independent, so if someone says, “Al Qaida” you can flag that conversation and then have a computer record, listen, and sift through that. It’s even easier if you are just looking at email messages or web browsing. You have to have a certain amount of rudimentary intelligence on this computer that’s sifting through this so it can understand an instant message conversation, in different protocols; Google is going to use a different one than Microsoft, for instance. But this is something that an undergraduate computer science student could do. The only trick is making it really really fast so it works in real time, and so this is why the NSA has a lot of money.

Dori Smith: Let’s talk about some of the corporate involvement of Google, or Yahoo, some of the other companies like Comcast. What do you know about what is being done to look at the involvement of these companies with these programs?

Declan McCullagh: Representative John Conyers –a Democrat from Michigan, has sent letters to these companies, Microsoft, Google, Yahoo, Comcast, and so on, saying essentially are you collaborating with the NSA or do you require that prosecutors or police or intelligence agents have a court order before you turn over information about your subscribers. I’m going to have an article that goes up on News.com with some details about this. I think the short answer is that they are not the ones that are collaborating by and large. Instead, it’s going to be the backbone providers. The ATT’s of the world. Companies like Level Three that your listeners may not have heard of that actually are the backbone providers and the people who keep the fiber optic cable humming.

Dori Smith: What are some of the present concerns about the use of these new, sophisticated technologies to surveil people, what are some of the concerns there?

Declan McCullagh: Well here is one, for instance, and this pops up in the concerns over Google and other search engines, and that is they store a lot of information about their users, they really don’t delete anything. If you have an account at Gmail and you gave them let’s say an offsite email address or let’s say that you use Google’s Ad Sense they might even have your home address and social security number required to pay you if you put ads up on your site.

In any case, these search engines have a lot of information about you and it is possible for a Federal prosecutor to send a subpoena saying, I want to know the protocol addresses and perhaps real names if you have them of anyone who searched for a certain type of string, “Al Qaida terrorism” for instance. It’s unlikely that they will choose those types of words but you can imagine other cases where they might be looking for information. Maybe you are a high school student doing a report on the problem of child pornography online and you type in the words child pornography in Google and then all of a sudden the next day you have a knock on your door with two FBI agents waiting to arrest you. You can imagine things like this happening. It hasn’t happened yet but the problem is that the information is there and it’s available via subpoena so it will happen eventually.

Dori Smith: It does seem overwhelming sometimes when you consider the sophistication of the technology being used.

We do know that in the past the US government has exchanged intelligence information with the UK, with Australia, with New Zealand. It’s basically a working information exchange relationship and if you look at the number of under seas fiber optic cables that go through one of those four countries it’s a huge amount, it’s up there in the 80% range. And so with that type of information sharing the US has an incredible system at its disposal.

Declan McCullagh: It does seem overwhelming. There are both technical and legal or political things you can do and the first is to use some form of encryption software on your own home computer. The Macintosh OSX later versions has a built in, it’s called File Vault; you just click references and turn it on. If you are using a windows computer, you can download a similar program from PGP.com disk encryption, this is what it is called, Whole Disk Encryption I think is their title. And so if your computer is ever stolen, if you lose it, if it goes through airport security and never comes out the other end of the conveyor machine at least someone won’t be able to use that information against you.

Another thing you can do is when you are web surfer, especially if you want to protect your privacy, is sign up for a service like Anonymizer.com that will not keep records of what you are doing. So when you connect to a search engine and you are going through Anonymizer, all of a sudden, all the search engine knows is that you are coming from Anonymizer, it doesn’t know that you are actually coming from Verizon or Comcast or SBC IP address.

Dori Smith: Is there anything that you can do to make sure that a history, you know I’ve had my search engine taken over by some of this spyware occasionally and I’ve had these bizarre results to search words that I’ve used. So what would we do to be able to scrub that kind of information from our computers that basically could incriminate us even though we have nothing to do with wanting that kind of information that might come up?

Declan McCullagh: Beyond using things like encryption software to protect your hard drive you can also make sure that you have your computer, this isn’t a problem if you are using a Macintosh for the most part I mean basically OSX and Apple users are going to be free of viruses and spyware and all these sorts of nasty things and so if all else is equal and you are wavering -get a Mac. But if you are using a Windows system then make sure it’s purged of spyware, and you can go to Lavasoft.com and download Adaware, that will help remove some of the nasty stuff from your computer. Microsoft also has an anti-spyware program out. Go to Windowsupdate.microsoft.com and make sure that you are using the latest patched version of the operating system.

Then also delete cookies from your computer that you are not using. For browsers use Firefox, it’s more safe and secure than Internet Explorer. It will let you do things like never set a cookie for Google.com. Generally you don’t need to. You do need one if you want to go to Google’s Gmail service but if you are just doing searches why let Google correlate it all. Just say “never set cookie” for Google.com and it’s pretty easy.

Sometimes you might want it. I use one for the New York Times so that I can connect and it knows my user name and password. I don’t have a problem with that but for search engines and other sites in general they don’t need cookies.

Dori Smith: What about the political side of any government office monitoring our searches, or monitoring our online use or our phone calls, how could this be used by people with political goals to try and get information about what Democrats versus Republicans versus Independents or Greens might be thinking about or working on at any given time?

Declan McCullagh: There is no evidence that there is wholesale monitoring of Americans just doing stuff domestically is going on. It would take a lot more work than just the overseas eavesdropping that we talked about earlier. But if that is happening well, let me put it this way, it’s happened before. You see the FBI being used for partisan political gain. You also just see the (see Declan McCullagh’s History- It won’t be the first time.) FBI going to far It eavesdropped on Eleanor Roosevelt, Supreme Court Justice, Martin Luther King, you know these are dark days in the history of our country and we had, after J. Edgar Hoover died, we had reforms put in place and it is supposed to be a better agency now. We don’t know. We have no reason to believe that those same kinds of abuses happening today but they could be and so probably the long term solution is to reduce the power of the Federal Government, have more and more offenses be prosecuted at the state level, the FBI didn’t exist until the early 1900s and the Republic survived.

Dori Smith: Let’s compare the US with some other countries. Does the technology compare, are there different technologies in use? What can you tell us.

Declan McCullagh: The US spends more on

Dori Smith: Just talk a little more about some of what’s on your web site because there is a very interesting piece about Wikipedia and members of Congress who have been changing the information there.

Declan McCullagh: (Laughs.) It’s kind of funny. This is a good story that came out over the last few days. What happened is that Wikipedia of course is the open source encyclopedia that says basically, come and edit me, there are some policies that say you basically shouldn’t be editing entries about yourself. And what’s happened is that some people connecting from computers in the House of Representatives and the Senate have been adding and deleting things and altering entries to score political points. Some of the entries are juvenile. One listed White House Press Secretary Scott McClellan as an entry for the word “douche”. The other is more serious and tried to play up the dubious connections between Al Qaida and Saddam Hussein and that was an article on the Iraq War. So you have seen this happen over a thousand times, over one thousand edits were made, which the folks at Wikipedia found out when they investigated. And it seems to be entirely bi-partisan. Both major parties are going in there and trying to score political points by adding and deleting stuff.

Dori Smith: The laws pertaining to citizens versus reporters are different, aren’t they, about surveillance that the government can do?

Declan McCullagh: At some level reporters have a few additional protections. I was subpoenaed by the Department of Justice and they did not follow their own internal guidelines and regulations but if you want to subpoena a reporter you are supposed to get clearance from the Attorney General, you are supposed to negotiate with a reporter, and so on, to see if the media organization will voluntarily turn over information. So to that extent reporters do have some additional protections but in general no. A reporter is a reporter and you can eavesdrop on a reporter as easily as you can anyone else. It’s not like reporters are written into the wiretapping regulations; Thou shalt not wire tap a reporter.

Dori Smith: Thanks so much for joining us on Talk Nation Radio.
Declan McCullagh: Thank you very much.

Dori Smith: Journalist Declan McCullagh of News.com You can also find his online work at Politechbot.com For Talk Nation I’m Dori Smith. Talk Nation Radio is produced at WHUS Storrs, Radio for the People, at Uconn. Whus.org to listen live Wed at 5 pm. For transcripts and discussion visit Talk Nation.org Our music is by Fritz Heede